Verified Answer to Second Claim Supplement (filed September 22, 2008).

David Binkley alleges in his claim that defendant’s agents at Sing Sing
Correctional Facility [Sing Sing] - specifically the package room and later the
grievance and/or media review committees - wrongfully withheld from his
possession Japanese language flash cards purchased for educational and religious
purposes. The package room advised claimant that the cards would not be provided
to him on February 1, 2008, and claimant pursued grievance claims thereafter.
Such denial, he asserts, interfered with his right to free exercise of his
religion. He seeks “incidental relief in the form of order to issue
religious/educational ‘books,’ defined by International Standard
Book Numbers as such for all intents and purposes under Federal and State law,
restoring claimant’s liberty, property and due process rights . . . [and]
Compensatory and/or punitive damages: $100,000.00. [Claim No. 115465,
¶¶3 and 7]. He states that on April 30, 2008 the Central Office Review
Committee [CORC] issued its decision denying the grievance he filed with regard
to the materials. [Claim No. 115465, ¶3]. In copies of letters claimant
wrote in pursuit of his grievance, that are attached to the claim filed in the
Court of Claims, claimant indicates that the materials were returned to his
mother. [Letter to Central Office Media Review Committee from David Binkley
dated March 10, 2008].

The present motion by claimant repeats some requests made in previous motion
practice,[1] but adds additional requests for
documents, and also seeks payment of expenses he alleges were incurred in
pursuit of this motion.

Defendant has responded with an affirmation in opposition including legal
argument with regard to some issues, as well as production of additional
documents. [See Affirmation in Opposition by Elyse J. Angelico, Assistant
Attorney General].

The request for documents already requested in previous motion practice is
denied, and the request for additional documents is denied as moot, given the
defendant’s production of same in response to this and other motions. The
request for payment of expenses is denied. There has been no adjudication of
claimant as a poor person [see Civil Practice Law and Rules §1101]
nor would such adjudication necessarily entitle him to payment for litigation
expenses by the State. See generally Court of Claims Act §§18
and 27; Civil Rights Law §79. The request for oral deposition of the State
employees listed is also denied, for the reasons stated in the decision deciding
claimant’s previous request for such depositions [seeBinkley v
State of New York, Claim No. 115465, M-75442 (Scuccimarra, J., filed
November 10, 2008)] and also because the Court is not persuaded that the
disruption to correctional facility security use of such a discovery device
entails is warranted, nor is the materiality and relevance of such discovery
established. Seegenerally Civil Practice Law and Rules
§3101(a). It is suggested (again) that claimant utilize written
interrogatories to obtain the limited discovery necessary to prosecute this
claim asserting such tenuous causes of action against the State of New York.
See Civil Practice Law and Rules §§3130, 3131, 3132, 3133.

Based on the foregoing, claimant’s motion [M-75533] is in all respects
denied.

October 22, 2008White
Plains, New York

HON. THOMAS H. SCUCCIMARRAJudge of the Court of
Claims

[1]. This is one of four (4) motions calendared
by the Clerk since issue was joined on August 7, 2008. Three were marked
submitted on September 17, 2008[M-75442; M-75510; M-75457]. The present motion
was calendared for October 15, 2008 [M-75533].